Citation Nr: 0010451
Decision Date: 04/20/00 Archive Date: 04/28/00
DOCKET NO. 95-36 178 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois
THE ISSUES
1. Whether a substantive appeal of a November 1993 RO
determination denying an earlier effective date for an grant
of VA improved disability pension benefits was timely filed.
2. Whether new and material evidence has been presented to
reopen a claim of entitlement to an earlier effective date
for a grant of VA improved disability pension benefits.
ATTORNEY FOR THE BOARD
Mark D. Chestnutt, Counsel
INTRODUCTION
The veteran served on active duty from August 1970 to July
1972.
In February 1992 the RO granted VA improved disability
pension benefits to the veteran. An effective date for the
grant was assigned as September 8, 1989, based upon his date
of claim. In a November 1993 letter the RO denied an earlier
effective date for this award. The veteran filed a notice of
disagreement; a subsequent statement of the case was issued.
A VA Form 9 does not appear in the record until October 1995.
In August 1995 the RO denied entitlement to an earlier
effective date for VA improved disability pension benefits;
the subsequent statement of the case made clear that the
veteran had not submitted new and material evidence to reopen
the previously denied claim. An appeal ensued.
In a September 1997 decision the Board of Veterans' Appeals
(Board) denied reopening the claim for an earlier effective
date, on the basis that no new and material evidence had been
submitted. The veteran then appealed to the United States
Court of Appeals for Veterans Claims (formerly known as the
United States Court of Veterans Appeals, or "Court").
Since the veteran had appealed his case to the Court, the
Board was deprived of jurisdiction over the veteran's
additional claim of clear and unmistakable error in the
September 1997 decision.
In a February 1999 memorandum decision, the Court vacated and
remanded the portion of the Board's decision that had denied
the earlier effective date. The Court held that the Board
first needed to address its own jurisdiction, considering the
October 1995 VA Form 9. In so doing, the Board was to afford
the veteran fair process in accordance with a recent decision
which had followed the issuance of the Board's underlying
decision, Marsh v. West, 11 Vet. App. 468, 471 (1998). See
also Bernard v. Brown, 4 Vet. App. 384 (1993).
Pursuant to the Court's remand, the Board sent the veteran a
letter in May 1999 advising him that he could submit
additional argument or evidence. He responded by returning
the letter to the Board the following month stating that he
waived the 90-day period provided for him to submit such
evidence, and requested adjudication. The Board, however, to
avoid prejudice to his claim and pursuant to Marsh, remanded
this case to the RO in September 1999. The RO was
instructed, in essence, to provide the veteran the
opportunity to submit additional argument and evidence on the
question of the Board's jurisdiction, based upon whether his
appeal had been timely filed, and if necessary, whether new
and material evidence had been presented to reopen. The RO
has successfully complied with all requirements of the
Board's remand.
In an October 1999 decision, the Board dismissed, without
prejudice, the veteran's then-pending claim of clear and
unmistakable error with the September 1997 Board decision.
This was appropriate since the case had been appealed to the
Court which had, in turn, rendered a decision. See 38 C.F.R.
§ 20.1400 (1999) (a final Board decision is not subject to
revision on the basis of clear and unmistakable error such
decision has been appealed to, and decided by, a Court of
competent jurisdiction).
As there is no pending claim of clear and unmistakable error
with the Board's September 1997 decision, and the required
development has been completed, this case is now ready for
appellate review. See Stegall v. West, 11 Vet. App. 268
(1998).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. In November 1993 the RO denied entitlement to an earlier
effective date for entitlement to VA improved disability
pension benefits, and provided the veteran with notice of his
appellate rights.
3. A notice of disagreement was filed in April 1994; it
reflects the veteran's address of record.
4. On July 22, 1994 the RO sent a statement of the case to
the veteran at his address of record.
5. A VA Form 9 was received in October 1995, following an
August 1995 RO denial, a September 1995 notice of
disagreement, and a September 1995 statement of the case--
which indicates that the issue involved was whether new and
material evidence had been presented to reopen the claim of
an earlier effective date for VA improved disability pension
benefits.
CONCLUSIONS OF LAW
1. The October 1995 VA Form 9 was not a timely appeal of the
November 1993 RO decision which had denied an earlier
effective date for the grant of VA improved disability
pension benefits. 38 U.S.C.A. §§ 7104, 7105 (West 1991);
38 C.F.R. §§ 20.101, 20.200, 20.202, 20.300, 20.301, 20.302,
20.303 (1999).
2. The October 1995 VA Form 9 was a timely appeal with
respect to the RO's September 1995 decision. 38 U.S.C.A.
§§ 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.302.
3. No new and material evidence has been submitted to reopen
a claim of entitlement to an earlier effective date for the
grant of VA improved disability pension benefits.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
In the years following service, the veteran filed several
claims for VA improved disability pension benefits, i.e.
entitlement to a permanent and total disability rating for
pension purposes, the first being in February 1985. He had
been provided notice of his appellate rights over those years
as well. The Board previously denied such a claim--not for
the first time--as recently as November 1988.
The veteran filed another claim, dated September 8, 1989, for
VA improved disability pension benefits. The RO denied this
claim in an April 1990 rating decision, of which the veteran
was notified by letter in May 1990. That letter notes that a
VA Form 1-4107 [notice of appellate rights] had been
enclosed. Subsequent correspondence from the veteran
indicated that he still wished to pursue the claim.
Eventually, following an October 1992 remand by the Board,
the RO granted entitlement to VA improved disability pension
benefits, and set the effective date of the award on the date
of the September 8, 1989 claim.
In August 1993 the veteran filed a claim of entitlement to an
earlier effective date for the grant VA improved disability
pension benefits. He asserted, in essence, that his
condition had been the same in 1985 when he made his first
pension claim as it was when the benefit was granted, and
thus he felt he should receive retroactive payments back to
the date of that earlier claim.
In a November 1993 letter, the RO denied the veteran's claim
for an earlier effective date, and provided him with notice
of his appellate rights.
The veteran filed a notice of disagreement in April 1994,
again providing his address of record.
On July 22, 1994 the RO sent a statement of the case to the
veteran at his address of record. The accompanying cover
letter informed the veteran that he could appeal the denial
to the Board, and the RO noted that a VA Form 9 was enclosed
for that purpose.
The RO then sent two letters to the veteran, one on July 26,
1994 and the second on August 8, 1994, largely identical,
both informing him that he was going to be scheduled for an
examination to determine whether his disability level had
changed. Both letters reflect that they were sent to the
veteran's address of record.
On August 18, 1994, the RO received a letter from the veteran
in which he stated he had been "run over" by a truck on
June 15, 1994. He said that he would be unable to appear for
his VA examination. Although the return address he provided
matched his address of record in Chicago, Illinois, he
informed the RO that correspondence should instead be sent to
him at his mother's address in Tennessee, where he was
staying. He indicated that he expected to be recovering over
the next two months, and that he was under physician's orders
not to travel before October 1, 1994.
A VA examination report from November 1994 reflects that the
veteran was in the Chicago area at that time. On VA
psychiatric examination in November 1994, the veteran's
complaints included nervousness and a sleep disturbance.
Objectively, the veteran was anxious, but exhibited no signs
of psychotic symptoms. He was considered capable of managing
his benefits. The diagnosis was adjustment disorder with
anxious mood secondary to physical problems.
In July 1995 the veteran wrote to the RO inquiring about the
status of his earlier effective date claim. In August 1995
the RO again informed the veteran that he was not entitled to
retroactive benefits. In September 1995 the veteran filed a
notice of disagreement with that determination. A statement
of the case was subsequently issued by the RO that month.
The issue was stated to be whether new and material evidence
had been submitted to reopen the claim an earlier effective
date for pension benefits. As the claim remained denied, the
veteran then filed a substantive appeal in October 1995.
II. Timeliness of appeal
An appeal consists of a timely filed notice of disagreement
in writing and, after a statement of the case has been
issued, a timely filed substantive appeal. 38 U.S.C.A.
§ 7105; 38 C.F.R. § 20.200. A substantive appeal consists of
a properly completed VA Form 9 or correspondence containing
the necessary information. 38 C.F.R. § 20.202.
The notice of disagreement and substantive appeal must be
filed with the VA office from which the claimant received
notice of the determination being appealed unless notice has
been received that the applicable VA records have been
transferred to another VA office. In that case the notice of
disagreement or substantive appeal must be filed with the VA
office which has assumed jurisdiction over the applicable
records. 38 C.F.R. § 20.300.
If an appeal is not filed by the claimant or his or her
representative, and the claimant is rated incompetent by the
VA or has a physical, mental or legal disability which
prevents the filing of an appeal on his or her own behalf,
such may be filed by a fiduciary appointed to manage the
claimant's affairs by the VA or a court, or by a person
acting as next friend if the appointed fiduciary fails to
take needed action or no fiduciary has been appointed.
38 C.F.R. § 20.301.
Except e date of mailing of the notification of
the determination being appealed, whichever period ends
later. The date of mailing of the statement of the case will
be presumed to be the same as the date of the statement of
the case and the date of mailing the letter of notification
of the determination will be presumed to be the same as the
date of that letter for purposes of determining whether an
appeal has been timely filed. 38 C.F.R. § 20.302. See
Archbold v. Brown, 9 Vet. App. 124 (1996).
An extension of the 60-day period for filing a substantive
appeal, or the 60-day period for responding to a supplemental
statement of the case when such a response is required, may
be granted for good cause. A request for such an extension
must be in writing and must be made prior to expiration of
the time limit for filing the substantive appeal or the
response to the supplemental statement of the case. The
request for extension must be filed with the VA office from
which the claimant received notice of the determination being
appealed, unless notice has been received that the applicable
records have been transferred to another VA. A denial of a
request for extension may be appealed to the Board.
38 C.F.R. § 20.303.
All claimants have the right to appeal a determination made
by the agency of original jurisdiction that the Board does
not have jurisdictional authority to review a particular
issue. This includes questions relating to the timely filing
and adequacy of the notice of disagreement and the
substantive appeal. Subject to review by courts of competent
jurisdiction, only the Board will make final decisions with
respect to its jurisdiction. 38 C.F.R. § 20.101(c).
In the instant case, the evidence shows that the RO mailed
its July 22, 1994 decision to the veteran at his address of
record. There has been no evidence submitted that would show
otherwise, and in fact, no credible evidence of record shows
that the veteran did not actually receive it.
The veteran's August 18, 1994 letter to the RO tends to show
that the July 26 and August 5, 1994 RO letters were received
by the veteran, regardless of his purported accident. It is
worth noting, however, that those RO letters do not mention
the actual date of the examination, which he stated in his
letter. Apparently the VAMC in the Chicago area where the
examination was to be held provided him with that
information. In any event, these RO letters and the
statement of the case were all sent to the same address of
record and all were sent following the alleged date of the
June 15, 1994 accident. The Board does not see why the
veteran would receive one piece of correspondence at his
address of record but not some other piece of correspondence
sent about the same time. Moreover, even without that August
1994 letter from the veteran, and aside from the veteran's
obvious familiarity with VA appellate practice from his
numerous claims over the years, all the evidence points to
proper delivery of the statement of the case to his address
of record prior to any notice that he may have temporarily
moved.
The presumption of regularity that public officers have
discharged their official acts in mailing official papers can
be overcome only with clear evidence to contrary. Davis v.
Brown, 7 Vet. App. 298, 300 (1995); see also Mason v. Brown,
8 Vet. App. 44, 53-55 (1995) (presumption of regularity
applies to VA mailing of RO decision in same manner as it
applies to the Board's mailing of its decision); Mindenhall
v. Brown, 7 Vet. App. 271, 274 (1994) (same); Ashley v.
Derwinski, 2 Vet. App. 307, 308-09 (1992) (same),
reconsidering 2 Vet. App. 62 (1992) (same). The presumption
of regularity is not rebutted in the instant case, and in
fact, the evidence would indicate that the veteran likely did
receive the July 1994 statement of the case.
Moreover, it is worth emphasizing that the August 18, 1994
letter followed the July 1994 issuance of the statement of
the case. The "key" date here is not the purported June
15, 1994 date of the accident, but the date that the RO
received notice from the veteran that his address was
different. The RO had already met its obligation to provide
the statement of the case sent to the address of record, and
the Board is unaware of any additional obligation imposed to
provide another statement of the case on the facts presented.
The very fact that the veteran communicated with the RO in
his August 18, 1994 letter is evidence that he could have
asked for an extension of time to file his appeal. In fact,
that is exactly what he was doing in that letter regarding
the examination that was scheduled. There is no evidence
that he was unable or incompetent to file a timely appeal,
and no credible reason proffered as to why a timely appeal
might otherwise have been made. The November 1994 VA
psychiatric examination report discloses no evidence that the
veteran was mentally or physically incapable of filing a
timely appeal. The Board notes that this case was apparently
never transferred from Chicago, and there is no indication
that the veteran communicated with any other RO, such as the
RO in Nashville, Tennessee. Interestingly, he had apparently
returned to Chicago in November 1994, and yet his inquiry
into the status of his claim did not come for many months
thereafter. Thus, the Board finds nothing in the record to
show that the veteran timely filed his appeal, or required an
extension to file, or was unable to file timely. 38 U.S.C.A.
§§ 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.300,
20.301, 20.302, 20.303.
As the Court indicated, and as the Board likewise previously
concluded in its September 1997 decision, the October 1995
appeal was untimely with respect to the November 1993 RO
decision on the merits of the effective date claim. The
Board, however, did not assume jurisdiction of the merits of
the November 1993 decision in its September 1997 decision.
The October 1995 appeal was timely, however, with respect to
the RO's decision on whether new and material evidence had
been presented to reopen the claim. That issue, regarding
whether there was new and material evidence to reopen the
earlier effective date claim, involved a timely notice of
disagreement, properly issued statement of the case and
timely appeal, i.e. the October 1995 VA Form 9. The Board
decided the new-and-material-evidence issue in its September
1997 decision, based upon this underlying development which
had placed the claim in appellate status. The Court has
vacated that decision, remanding for the Board to determine
its own jurisdiction on the issue. As discussed, the Board
has jurisdiction over the question of whether new and
material evidence has been presented to reopen the claim at
issue.38 U.S.C.A. §§ 7104, 7105.
III. New and material evidence
When a claim is denied by an RO, and the claimant fails to
timely appeal by filing a notice of disagreement within the
one-year period following the decision as prescribed in 38
U.S.C.A. § 7105(b)(1), that decision becomes final and the
claim may not thereafter be reopened or allowed, except as
may otherwise be provided by law. 38 U.S.C.A. § 7105(c); see
also Person v. Brown, 5 Vet. App. 449, 450 (1993) (failure to
appeal an RO decision within the one-year period renders the
decision final). The exception to these rules is that if new
and material evidence is secured with respect to a claim
which has been disallowed, the VA shall reopen the claim and
review the former disposition of the claim. 38 U.S.C.
§ 5108; Spencer v. Brown, 4 Vet. App. 283, 286-87 (1993);
Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also
Suttmann v. Brown, 5 Vet. App. 127, 135-36 (1993) (applying
§ 5108 provisions for reopening final claims to RO decisions
rendered final by operation of § 7105(c)). Therefore, once a
decision becomes final, the Board does not have jurisdiction
to consider the previously adjudicated claim unless new and
material evidence is presented, and before the Board may
reopen such a claim, it must so find. Barnett v. Brown, 83
F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.
App. 167, 171 (1996) (when new and material evidence has not
been submitted in a previously disallowed claim further
analysis is neither required, nor permitted); Fossie v. West,
12 Vet. App. 1 (1998).
Since, as discussed supra, no appeal was timely filed with
respect to the November 1993 RO determination, that decision
became final. The veteran's claim for an earlier effective
date for the grant of VA improved disability pension benefits
cannot be reopened unless new and material evidence has been
submitted.
Under the test set forth in Colvin v. Derwinski, 1 Vet.
App. 171 (1991), evidence was material when it was probative
of the issue at hand and there was a reasonable possibility
of a change in outcome when viewed in light of all the
evidence of record. This test was recently invalidated by
the United States Court of Appeals for the Federal Circuit in
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal
Circuit reasoned that the "reasonably-likely-to-change-the-
outcome" requirement was not only unnecessarily stringent
but also inconsistent with the promulgated regulation on
point, 38 C.F.R. § 3.156(a). Per that regulation, Hodge
provides for a reopening standard which calls for judgments
as to whether new evidence (1) bears directly or
substantially on the specific matter, and (2) is so
significant that it must be considered to fairly decide the
merits of the claim. 38 C.F.R. § 3.156; Fossie, supra.
In applying the Hodge test, the United States Court of
Appeals for Veterans Claims (formerly known as the United
States Court of Veterans Appeals, or "Court") has
elaborated that first, it must be determined whether new and
material evidence has been presented. If so, then second, it
must be determined whether a well-grounded has been
presented. If the claim is well grounded, then the claim may
be reopened adjudicated upon the merits. Elkins v. West, 12
Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203
(1999).
Since the RO's last denial of whether the veteran is entitled
to an earlier effective date for the grant of his VA pension
benefits, he has merely reiterated his arguments. The
veteran's assertion--that his condition has been just as
disabling since he originally applied for pension in 1985--is
irrelevant to this case. He had already made that contention
and had the chance to appeal the RO's determination to the
contrary. He failed to do so, and as noted, the RO decision
became final. Absent new and material evidence being
submitted, the veteran is not entitled to reargue the merits
of the case. Merely repeating his lay opinion about the
level of his disability does not amount to new and material
evidence. It is merely cumulative of what he has already
said which was previously rejected by the RO. He has
submitted nothing more. A repeated disagreement with a
decision, without any support, is not even evidence at all.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Hodge.
The Board notes that in this case, even if the veteran had
somehow prevailed and had this claim reopened, he could not
obtain an earlier effective date prior to the November 1988
Board decision denying the underlying claim for pension,
absent a finding of clear and unmistakable error in that
decision.
Since no new and material evidence has been presented, the
Board's consideration must stop here. There can be no
further inquiry as to whether or not the claim may be well-
grounded. Butler v. Brown, 9 Vet. App. 167 (1996); see
Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12
Vet. App. 209 (1999); Hodge.
ORDER
No timely appeal having been filed with respect to the
November 1993 RO determination, the Board has no jurisdiction
to consider that determination on the merits; the appeal on
this issue is denied.
No new and material evidence having been presented, the claim
of entitlement to an earlier effective date for the grant of
VA improved disability pension benefits is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
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